As cardiovascular surgeon John Natale, M.D., sits in federal prison, the Seventh Circuit Court of Appeals in Chicago heard his appeal on April 18.

After a seven-year investigation, Dr. Natale was indicted for Medicare fraud. Unlike the majority of federal defendants, who feel compelled to cave in by signing a plea bargain even when innocent, Dr. Natale courageously exercised his constitutional right to have a public trial. That is in itself considered an “obstruction of justice” by our government. The conviction rate is more than 95 percent, and sentences may be much longer than those meted out to “cooperative” defendants.

The jury found Dr. Natale not guilty on all of the fraud charges. But he was convicted on two counts of making “false statements” in his operative reports. Over his objection, prejudicial diagrams were sent to the jury room, supposedly representing the operation described in the operative report as well as the operation that was actually done. As anyone can see, a Y-shaped graft (mentioned in the operative report) is different from a tube-shaped graft (placed in the patient, by the doctor’s own admission). The government had thereby emphasized a false statement by Defendant.

The term “false statement” suggests a deliberate lie, but it could be, as Dr. Natale said, a simple mistake, made while a tired and overworked surgeon dictated a pile of reports weeks after the surgery. The jury was not instructed that a false statement is a crime only if made in a deliberate attempt to commit fraud—and, as the jury determined, there was no fraud.

The fraud charges concerned whether Dr. Natale had billed for an operation more complex than the one he did, and were related to the upper end of the graft, not the lower end. All the patients had an abdominal aortic aneurysm that involved the renal arteries, so that the aorta had to be clamped above the branches supplying the kidneys. Dr. Natale did a reconstructive procedure to strengthen the aorta, so he did not have to cut the renal arteries off the aorta and sew them into the graft. There is no precise AMA-copyrighted code for this, so Dr. Natale used the closest one, which is not for a more complex procedure and which did not increase his payment.

After seven years of searching, the government was able to come up with only five cases to include in the indictment, all of them frail, elderly patients who would have died of rupture of their weakened abdominal aorta without surgery, or of kidney failure from inadequate surgery. All the patients survived and did well after surgery. The key patient survived for nearly a year after Dr. Natale’s operation. Later, after two very aggressive, likely unnecessary re-operations done by Dr. Natale’s main accuser, she died.

At the appeal, the main argument was not about justice, but rather about what the defense attorney did or did not say during the trial. Did he “waive” or “forfeit” grounds for appeal by not objecting to the jury instructions?

One judge referred to the need to apply the law that was in effect in 2002-2004. Under more recent law, the government’s burden of proof has been lightened. The mens rea or criminal intent requirement is virtually gone. The prosecutor does not need to prove that a doctor “knowingly and willfully” lied in order to pad his fee, only to show that an incorrect AMA code was used and the doctor intended to get paid for his work.

The implications of the case are profound, the judge noted: Any error in any medical record related to a health program could be a federal crime.

But if the rules change about defense attorneys’ waiving their client’s rights by being insufficiently assertive, the floodgates for appeals might be opened.

Let us hope that justice is done for Dr. Natale. But to this observer who attended the appellate proceeding, it looks as though the laws are increasingly designed to deter expensive care of the elderly, and that the judicial system focuses more on procedural rules than on substantive justice.

Doctors need to know that anything in the medical record can be used against them—as can errors by their own million-dollar attorney.

Jane M. Orient, M.D., Executive Director of Association of American Physicians and Surgeons, has been in solo practice of general internal medicine since 1981 and is a clinical lecturer in medicine at the University Of Arizona College Of Medicine. She received her undergraduate degrees in chemistry and mathematics from the University of Arizona, and her M.D. from Columbia University College of Physicians and Surgeons. She is the author of Sapira’s Art and Science of Bedside Diagnosis; the fourth edition has just been published by Lippincott, Williams & Wilkins. She also authored YOUR Doctor Is Not In: Healthy Skepticism about National Health Care, published by Crown.